– By James R. McCormick, Jr., Esq. (originally published in January, 1998)

A recent California case seems to say yes. The court in Kucera v. Lizza (1997) 97 D.A.R. 14787 recognized the ability of local municipalities to enact ordinances that are based purely on aesthetic consi-derations. While not directly applying to homeowners associations, other cases have likened homeowners associations to a local municipality because they often perform many of the same functions. Therefore, it may be the case that homeowners associations can regulate on the same basis.

The local ordinance analyzed in Kucera was meant to preserve views and sunlight against unreasonable obstruction by tree growth. The ordinance passed by the Town of Tiburon, grants persons:

the right to preserve and seek restoration of views or sunlight which existed at any time since they purchased or occupied a property, when such views or sunlight are from the primary living area or active use area and have subsequently been unreasonably obstructed by the growth of trees.

The ordinance further mandates that:

No person shall plant, maintain, or permit to grow any tree which unreasonably obstructs the view from, or sunlight reaching, the primary living area or active use area of any other parcel of property.

The Town of Tiburon felt so strongly about this issue that a violation based on any obstruction was also deemed a public nuisance. The Town further felt that any conditions of restorative action “should be recorded and run with the land to help guarantee permanent preservation of pre-existing views and sunlight.”The main question involved in the case was whether the Town had the authority to enact this type of ordinance. The Town, joined by friend-of-the-court briefs filed by 71 other cities in California, argued that it had the authority based on its inherent police power. The opponents, however, maintained that this ordinance was outside the scope of the town’s police power. The constitutional test used to determine the validity of such an ordinance is “whether it has a real or substantial relation to the public health, safety, morals or general welfare.”

A stated goal of the ordinance was to maintain trees “in a healthy condition for both safety reasons and for preservation of sunlight and outward views.” While safety is a mentioned goal, it was considered incidental to the primary aesthetic goal of preserving light and views. The Court noted that “the ordinance, in its stated objectives, is mainly concerned with aesthetic considerations.”

Despite the fact that the stated primary consideration of the ordinance was aesthetic, the Court held this did not void the ordinance. Instead, the Court stated:

It is well settled that the state may legitimately exercise its police power to advance [a]esthetic values. ‘The concept of public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary.’

The Court also noted that these values could change over time. That is, what may not appropriately be exercised as a police power today, may well be appropriately exercised in the future. Due to changes in living conditions, the court felt that today, aesthetic purposes alone can justify assertion of the police power. Thus, the court held:

The Tiburon ordinance is directed toward a valid police-power goal to preserve views and sunlight. Tiburon’s choice of regulating obstructing trees and tree growth obviously bears a reasonable relationship to the achievement of those goals.

Homeowners associations often regulate based on aesthetic considerations. For example, many architectural rules are based on what the developer, board of directors or architectural committee deems to be aesthetically pleasing. Furthermore, homeowners associations often establish rules and regulations similar to those established by local municipalities. This could be an important decision for homeowners associations in that it expands traditional police power to include rules based primarily on aesthetic considerations.